M.A.C.A. No. 802 of 2008 & C.O. No. 76 of 2015

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** ## **MACA.No.802 OF 2008** **AGAINST THE AWARD IN OPMV 460/2004 DATED 25-10-2007 OF ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/S:** |**1**|**NATIONAL INSURANCE CO LTD**| |---|---| ||**THODUPUZHA,**| ||**REP. BY THE ASSISTANT MANAGER,,**| ||**KOCHI REGIONAL OFFICE,**| ||**M.G.ROAD, COCHIN-682035.**| |**2**|**NATIONAL INSURANCE CO. LTD.**| ||**THODUPUZHA,**| ||**REP. BY THE ASSISTANT MANAGER,,**| ||**KOCHI REGIONAL OFFICE,**| ||**M.G.ROAD, COCHIN-682035.**| ||**BY ADV. SRI.E.M.JOSEPH**| ## **RESPONDENT/S:** |**1**|**MATHEW**| |---|---| ||**AGED 60 YEARS**| ||**S/O. MATHAI,**| ||**MAMBRAKUZHIYIL HOUSE,**| ||**VENGALLOOR KARA,**| ||**KUMARAMANGALAM.**| |**2**|**ALIYAMMA**| ||**AGED 54 YEARS**| ||**W/O. MATHEW,**| ||**MAMBRAKUZHIYIL HOUSE,**| ||**VENGALLOOR KARA,**| ||**KUMARAMANGALAM.**| |**3**|**SAM AGED 32 YEARS**| ||**S/O. MATHEW,**| ||**MAMBRAKUZHIYIL HOUSE,**| ||**VENGALLOOR KARA,**| ||**KUMARAMANGALAM.**| MACA.No.802 OF 2008 & CO.NO.76 OF 2015 2 - **4 ARAVINDAKSHAN NAIR S/O. KRISHNAN NAIR THYPARAMBIL HOUSE, THAZHAVAMKUNNU, WORKING AT ASHOK MOTORS, THODUPUZHA.** **5 K.P. VASUDEVAN NAIR ASHOK MOTORS, THODUPUZHA.(DIED) (AS PER THE ORDER DATED 18/12/2013 IN IA NO.3471/13 IN MACA NO.802/2008,IT IS RECORDED THAT THE APPELLANT DOES NOT WANT TO IMPLEAD THE LEGAL HEIRS OF DECEASED 5TH RESPONDENT)** - **6 ROSHY PETER S/O. A.K.PETER MAROTTICKAL (ANGADIATHU) HOUSE, NEYYESSERY P.O.,, THODUPUZHA.** **R1 BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2021, ALONG WITH CO.76/2015, THE COURT ON 08-03-2021 DELIVERED THE FOLLOWING:** MACA.No.802 OF 2008 & CO.NO.76 OF 2015 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** **CO.No.76 OF 2015 IN MACA. 802/2008** ## **AGAINST THE ORDER/JUDGMENT IN MACA 802/2008 OF HIGH COURT OF KERALA** ## **CROSS OBJECTIONERS/RESPONDENTS 1 TO 3:** |**1**|**MATHEW**| |---|---| ||**AGED 72 YEARS**| ||**S/O.MATHAI,**| ||**MAMBRAKUZHIYIL HOUSE,**| ||**VENGALLOOR KARA,**| ||**KUMARAMANGALAM**| |**2**|**ALIYAMMA**| ||**AGED 66 YEARS**| ||**W/O.MATHEW,**| ||**MAMBRAKUZHIYIL HOUSE,**| ||**VENGALLOOR KARA,**| ||**KUMARAMANGALAM**| |**3**|**SAM**| ||**AGED 44 YEARS**| ||**S/O.MATHEW,**| ||**MAMBRAKUZHIYIL HOUSE,**| ||**VENGALLOOR KARA,**| ||**KUMARAMANGALAM**| ||**BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT**| ## **RESPONDENTS/APPELLANTS AND RESPONDENTS 4 TO 6:** |**1**|**NATIONAL INSURANCE CO.LTD.**| |---|---| ||**THODUPUZHA,**| ||**REPRESENTED BY THE ASSISTANT MANAGER,**| ||**KOCHI REGIONAL OFFICE,**| ||**M.G ROAD,COCHIN 682 035**| MACA.No.802 OF 2008 & CO.NO.76 OF 2015 4 **2 NTIONAL INSURANCE CO LTD THODUPUZHA, REPRESENTED BY THE ASSISTANT MANAGER, KOCHI REGIONAL OFFICE, M G ROAD,COCHIN 682 035** - **3 ARAVINDAKSHAN NAIR S/O.KRISHNAN NAIR, THYPARAMBIL HOUSE, THAZHAVAMKUNNU, WORKING AT ASHOK MOTORS,T HODUPUZHA** - **4 K.P VASUDEVAN NAIR ASHOK MOTORS, THODUPUZHA (DIED)** - **5 ROSHY PETER S/O. A.K PETER, MAROTTICKAL (ANGADIATHU) HOUSE, NEYYASSERY P.O, THODUPUZHA** **R1 BY ADV. SRI.E.M.JOSEPH** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2021, ALONG WITH MACA.802/2008, THE COURT ON 08-03-2021 DELIVERED THE FOLLOWING:** MACA.No.802 OF 2008 & CO.NO.76 OF 2015 5 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- ``` ## **`M.A.C.A. No. 802 of 2008 & C.O. NO. 76 of 2015`** ``` ------------------------------------------ Dated this the 8[th] day of March 2021 ``` ## **`JUDGMENT`** ``` This is an appeal filed by respondent Nos. 3 and 4 in O.P(M.V.) No.460/2004 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The above claim petition was filed by respondent Nos. 1 and 3 herein under Section 163A of the Motor Vehicles Act, 1988. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 2.The petitioners are the legal representatives of one Varghese Mathew, who died in a Motor Vehicle Accident on 12.12.2003 at 10.45 p.m. He was proceeding to the private bus stand in a motor cycle bearing Registration No. KL 6B/5898 to take his friend from the bus stand and when he reached in front of the Caltex ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 6 ``` Petrol Pump at Thodupuzha, a bus bearing registration No. KL 6/7018 proceeding ahead of the motor cycle stopped abruptly without any signal and thereby the bike hit on the back side of the bus. Varghese sustained severe head injury. The 1[st] respondent was driving the bus at the relevant time and he was responsible for the accident by his rash and negligent driving. The injured succumbed to the injuries at 5.45 p.m., on 13.12.2003. The bus was owned by the 2[nd] respondent and was insured with the 3[rd] respondent as on the date. The registered owner of the bike bearing Registration No. KL 6B/5898 and its insurer were arrayed as respondent Nos. 4 and 5 in the claim petition. In the claim petition, it is stated that, the deceased was getting a monthly income Rs. 3,500/-. They claimed an amount of Rs. 3,50,000/- as compensation from the respondents. ``` `3. The 1[st] and 4[th] respondents remained exparte.` ``` 4. The 3[rd] and 5[th] respondents have filed joint written statement admitting insurance for the motor ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 7 ``` cycle and the bus. According to them, the motor cycle was insured in the name of one Roshy Peter, who was the 4[th] respondent in the claim petition for the period from 21.08.2003 till 20.08.2004 and the policy is an Act Only Policy. The bus was insured in the name of one Vasudevan Nair, who is the 2[nd] respondent in the claim petition for a period from 13.02.2003 till 12.02.2004. It is also contended that the claim petition is not maintainable in law or on facts. According to these respondents, the provisions of Section 163A of the Motor Vehicles Act are applicable only to third parties. It is specifically contented that the the provisions of Section 163A of the Motor Vehicles Act are not applicable in a case of a person having annual income above Rs. 40,000/-. The respondents contented that, the admitted case of the claimant is that the the annual income claimed in the petition is Rs. 42,000/- and on that ground itself, the claim petition is not maintainable. There are other contentions also raised by these respondents. ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 8 ``` 5.To substantiate the case, Exts.A1 to A10 were marked on the side of the petitioners. Exts.B1 and B2 are the exhibits marked on the side of respondents. PW1 and PW2 were examined on the side of the petitioners. ``` ``` 6.After going through the evidence and documents, the Tribunal allowed the petition in part and passed an award in favour of the petitioners for an amount of Rs.1,96,500/- with interest @ 8% per annum from 26.07.2004 i.e., from the date of flng of the claim petition till the date of realisation. Aggrieved by the above award, this appeal is filed by the Insurance Company, who are the respondent Nos. 3 and 5. The claimants also filed a Cross Objection as CO. 76/2015 challenging the quantum of compensation. ``` ``` 7.Heard the learned counsel for the appellant and the learned counsel for the Cross Objection. ``` ``` 8.The learned counsel for the appellant contended that the claim petition itself is not maintainable, for the simple reason that the admitted ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 9 ``` case of the claimants in the pleadings is that, he is having an annual income of more than Rs. 40,000/-. The learned counsel for the appellant submitted that, the claim petition under Section 163A of the Motor Vehicles Act is maintainable only if the annual income of deceased is below Rs. 40,000/-. The learned counsel for the appellant also relied on the judgment of this Court inNational Insurance Company Ltd. V. K.S. Lathika & Ors. [2011 (3) KLT 412],to contend that benefit under Section 163A is not available to persons earning more than Rs. 40,000/- per annum, even if, the claim is limited by treating the annual income as Rs.40,000/- or less. ``` ``` 9. The learned counsel for the Cross Objectioner submitted that the contention of the appellant is not maintainable. The learned counsel submitted that it is a beneficial legislation. The learned counsel relied on the judgment of the Apex Court inPuttamma v. Narayana ``` ``` Reddy [2014 (1) KLT 738 (SC)]. According to the ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 10 ``` cross of objectioner, simply because in the claim petition, it is pleaded that the deceased is having annual income more than Rs.40,000/-, the claim petition cannot be rejected. The learned counsel submitted that the Tribunal found that the annual income of the deceased is Rs.24.000/- and therefore, the Tribunal perfectly justified in entertaining an application under Section 163A of Motor Vehicles Act. ``` ``` 10. It is an admitted fact that in the claim petition the income of the deceased is mentioned as Rs. 3,500/- per month. If that is the case, the total annual income of the deceased will be Rs. 42,000/-. i.e., beyond the cap mentioned in Section 163A of Motor Vehicles Act. ``` ``` 11. In Puttamma's Case (Supra) the Apex Court considered the validity of the 2[nd] schedule of the Motor Vehicles Act. After considering the contentions of the Amicus Curae appointed in that case, the Apex Court Observed like this:- ``` ``` “53. In view of finding recorded above, we ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 11 ``` hold that Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable, due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy. ``` ``` 54. A letter dated 5th December, 2012 issued by the Joint Secretary, Ministry of Road Transport & Highways, New Delhi has been brought to our notice by Mr. P.P. Malhotra. Giving reference to the present case therein, the officer has informed that the Motor Vehicles (Amendment) Bill, 2012,inter alia, to amend Section 163A of the Motor Vehicles Act, 1988 was passed by the Rajya Sabha on 8th May, 2012. The said Bill proposes to substitute Section 163-A(3) of the Act by empowering the Central Government to revise the amount or the multiplier specified in the Second Schedule after every three years and furthermore, the Bill also seeks to substitute the Second Schedule so as to provide that for death of non-earning persons, a fixed compensation of Rs.1,00,000 for children up to 5 years of age and Rs.1,50,000/- for persons more than 5 years of age. It is informed that though the Bill has been passed by the Rajya Sabha and it is still pending consideration before the Lok Sabha ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 12 ``` for its approval. The letter dated 5thDecember, 2012 reads as follows: ``` ``` "No. RT-11021/19/2012-MVL Dated December 5th, 2012 ``` ``` Sub:- Special Leave Petition (Civil) No.4639 of 2010 filed by Puttamma & Ors. v. K.L Reddy & Anr. before the Supreme Court of India. Sir, Kindly refer to your D.O. letter No.117/Genl/ASG(PPM)/2012 dated 29[th] November, 2012 regarding SLP(C) No.4639 of 2010 titled as Puttamma & Ors. v. K.L.Narayana Reddy & Anr. before the Supreme Court of India. ``` ``` 2. In this connection, I am to inform that the Motor Vehicles (Amendment) Bill, 2012, inter alia, to amend Section 163A of Motor Vehicles Act, 1988, was passed by Rajya Sabha on 8.5.2012. The said Bill proposes to substitute Section 163A(3) of the Act by the following section: "The Central Government keeping in view the cost of living and the rise in the price index, may, by notification in the Official Gazette, revise the amount or the multiplier specified in the Second Schedule after every three years." ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 13 ``` 2.1. Furthermore, the Bill also seeks to substitute the Second Schedule so as to provide that for death of non-earning persons, a fixed compensation shall be payable as under:- ``` ``` i) Rs.1,00,000 for children up to 5 years of age ``` ``` ii) Rs.1,50,000/- for persons more than 5 years of age. The minimum amount payable is sought to be revised to Rs.1,00,000. ``` ``` 2.2. The following steps have been proposed for working out compensation:- ``` ``` a) The proven annual income of the victim is to be worked out: ``` ``` b) Appropriate multiplier (higher of the multiplier based on the age of the victim and the age of the surviving/dependent parents/spouse/children) to be applied: ``` ``` c) Multiply the proven annual income by the appropriate multiplier to arrive at compensation amount, subject to following, namely:- ``` ``` i) The amount of compensation payable for Permanent Total Disablement as defined in Schedule ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 14 ``` 1 of the Workmen's Compensation Act, 1923 (8 of 1923) shall be determined by application of appropriate multiplier to proved income, subject to maximum of Rs.10 lakhs. ``` ``` ii) The amount of compensation so arrived shall be reduced by 1/3rd in respect of fatal accidents (reduction of 1/3rd represents living expenses for deceased person, had he been alive) ``` ``` 2.4 The Bill is presently pending in Lok Sabha. ``` ``` 3. You are requested to place the above facts before the Hon'ble Supreme Court of India. Further development in this matter may please be intimated to this Ministry. ``` ``` Yours sincerely, ``` ``` (Sanjay Bandopadhyaya) ``` ``` Shri P.P. Malhotra, ``` ``` Additional Solicitor General of India, Supreme Court of India, ``` ``` 57 Lodhi Estate, ``` ``` New Delhi - 110003." ``` ``` 12. In this case, an amendment petition is filed by the claimants along with the cross objection, which is ``` 15 MACA.No.802 OF 2008 & CO.NO.76 OF 2015 ``` numbered as I.A. No. 1/2019. The prayer in that petition is to amend the memorandum of original petition in O.P(M.V) No. 460/2004, to the effect that the claimants are limiting their annual income to Rs.40,000/-. ``` ``` 13. The learned counsel for the appellant cited a decision of this Court inT.V. Sasikala and Anr. v. C.P. Jospeh [2021 (1) KLJ 697]. That is a case in which it is stated that if an application for amendment of pleadings is filed after commencement of trial, it is the duty of the Court to satisfy itself that the applicant inspite of due diligence could not have filed it at a later stage. The learned counsel for the appellant submitted that the amendment petition is filed after 8 years of flng the appeal by the Insurance Company. ``` ``` 14. The learned counsel for the cross objectioner produced the judgment dated 19.01.2021 in O.P (M.A.C) No.89/2020. That was a petition in which the impugned order was an order by which an application to amend ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 16 ``` the claim petition under Section 166 of the Motor Vehicle Act to 163A of the Motor Vehicles Act was rejected by the Tribunal. The learned counsel submitted that after considering the case law on this issue, this Court allowed the petition. ``` ``` 15. I don't want to make any observation about the above judgments relied on by the learned counsel on both sides. Admittedly, it is a beneficial legislation. The Apex Court observed that the 2[nd] schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy. Here is a case where the claimants are the legal heirs of the deceased. A claim petition was filed before the Tribunal under Section 163A in which it is stated that the annual income of the deceased is Rs.42,000/-. The Tribunal found that the annual income is only Rs.25,000/-. Now the Insurance Company says that the claim petition itself is not ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 17 ``` maintainable, because, in the pleadings it is stated that the annual income of the deceased is above Rs.40,000/-. Now an amendment petition is filed by the claimants to limit the annual income to Rs. 40,000/-. According to me, the cross objection/ claimants can be given liberty to file an application to amend the pleadings in the claim petition after remanding the matter to the Tribunal. As I stated earlier, I don't want to make any observation on the merits of the case. ``` ``` 16. Therefore, this appeal and cross objections are allowed. ``` - `(i) The impugned award is set aside. The Tribunal is directed to restore O.P. (M.V) No. 460/2004.` ``` (ii) The claimants/cross objectioners are allowed to file an application to amend the pleadings in the claim petition limiting the annual income of the deceased. If such an application is filed, the Tribunal will pass appropriate order in accordance with law. ``` MACA.No.802 OF 2008 & CO.NO.76 OF 2015 18 ``` (iii) Since, the claim petition was filed in the year 2004, the Tribunal will dispose the claim petition as expeditiously as possible at any rate, within four months from date of receipt of a copy of this judgment. ``` ``` (iv) The parties will appear before the Tribunal on 05.04.2021. Registry will return the Lower Court Records forthwith. ``` ## **`Sd/-`** ``` P.V.KUNHIKRISHNAN ``` ``` JUDGE ``` ``` avs ```